Originally
three appeals were filed against the common judgment of the Rajasthan High
Court, Jodhpur, whereby three appeals were
disposed of. During the pendency of Criminal Appeal no. 51/2003, the appellant Shamshuddin
died and by order dated 20.1.2004 the appeal has been dismissed having abated.
The consideration, therefore, is restricted to other two appeals i.e. Criminal
Appeal nos. 52/2003 and 53/2003.

Of the
two appeals one has been filed by convict- accused Smt. Krishna Kanwar i.e. Crl.
Appeal No.53 of 2003 and the other appeal has been filed by the State of
Rajasthan (Crl. Appeal No. 52 of 2003) questioning the acquittal of accused Mangi
Lal and Nathu Singh, as directed by the Trial Court and upheld by the High
Court. Initially, seven persons were treated to be accused persons. Four of
them, namely, Shamshuddin, Smt. Krishan Kanwar, Mangi Lal and Nathu Singh were
tried by District and Sessions Judge, Pratapgarh, who found accused Shamshuddin
and Smt. Krishna Kanwar guilty of offences punishable under Sections 8 and 21
of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the
Act') and sentenced each to undergo rigorous imprisonment for 14 years and to
pay a fine of Rs.2 lakh with default stipulation. Nathu Singh and Mangi Lal
(A-6 and A-7) respectively, were acquitted.

Prosecution
case as unfolded during trial is as follows:

Prassan
Kumar Khamesara (PW-16), Dy. S.P. Chhoti Sadri received information at about 8.30 p.m. on 5.7.1994 to the effect that on 6.7.1994 between 5.00 a.m. to 9.00 a.m., one Shamshuddin S/o Shakoor Khan,
resident of Dharakhedi, shall be coming on a Rajdoot motorcycle, from Chittorgarh
side and will be proceeding towards Udaipur, alongwith contraband heroin.

The
above information was not only recorded but also forwarded to S.P., Chittorgarh
and Addl. S.P., Pratapgarh through Indermal (PW-9). Upon above information, Shiv
Prasad (PW-14), Addl. S.P., Pratapgarh alongwith lady constable Smt. Vimla Chaudhary
(PW-5) and other members of staff reached Police Station, Chhoti Sadri on
6.7.1994 in the morning at about 4.00 a.m. Rajeev Dasot, S.P. Chittorgarh
reached at Ghomana Choraya in the morning of 6.7.1994, where Datar Singh SHO
(PW-11) alongwith other staff of his Police Station were present. After
discussing the matter with S.P. and Addl. S.P., Dy. S.P. Prassan Kumar Khamesara
(PW-16) staged a nakabandi at Ghomana Choraya, in which Yudhishtar Singh (PW-8)
and Wardichand (PW-13), independent attesting witnesses were also associated.

At
about half past six in the morning, one motorcycle came
from Pratapgarh side, which was apprehended by the police party. The person who
was driving the motorcycle, disclosed his name as Shamshuddin and pillon rider
disclosed her name to be Smt. Krishna Kanwar. Both the persons were apprised of
the secret information that they were carrying contraband heroin and,
therefore, their search is to be conduced and, if they desire, same can be
undertaken in the presence of a Magistrate or a Gazetted Officer. Written
notices (Exb.P-9 and P-10 respectively) were given to them whereupon both of
them wanted to be searched by Dy. S.P. Prassan Kumar Khamesara (PW-16) himself.

Thereafter
their personal search was conducted in the presence of not only police
personnel but also in the presence of attesting witnesses Yudhisthar (PW-8) and
Wardichand (PW-13). A plastic bag was found tied on the stomach and waist of Shamshuddin
in which 2 Kgs. heroin was kept. Similarly, from the personal search of Smt.
Krishna Kanwar, 600 gms. heroin was recovered. They were not having any license
to carry the above contraband; therefore, same was seized and two samples of 30
gms. from each lot were drawn and sealed separately. The remaining mal-mudda
was also sealed separately. Seizure memo, (Exb.P-3) was prepared
simultaneously, on which thumb impression of not only both the accused persons
but signatures & thumb impression of both the attesting witnesses and
police party were taken, and seal impression was placed on the memo. The sealed
articles were deposited in Malkhana.

Upon
interrogation, Shamshuddin gave a disclosure statement (Exb.P-33) and regarding
Rs.33,000/- which he earned by selling heroin and other household articles
purchased from such earning. Thereafter, Shamshuddin took the police party to
his house in village Batalganj (U.P.) and in the presence of Kanhaiya Lal and Magni
Ram, attesting witnesses, Rs.33,000/-, an FDR of Rs.20,000/- dated 30th May,
1994 issued by SBBJ Branch, Chetak Circle, Udaipur were recovered. Other
household articles and jewellery were also recovered vide Exb.P-5.

Shamshuddin
also disclosed that the contraband heroin so seized from both the accused was
purchased from Mangi Lal and Nathu Singh. This led to arrest of both of these
persons, and upon their disclosure statement, their houses were also searched
on 6.7.1994 from 4.00
p.m. to 6.00 p.m. 27 gms. heroin was recovered from the house of Mangi
Lal whereas 225 gms. heroin was recovered from house of Nathu Singh. Seizure
memos Exb.P-1 and P-2 respectively were prepared. Rupees 41,980/- were
recovered from the house of Nathu Singh. Other necessary memos were prepared.

After
completion of investigation, charge sheet was placed. Accused persons pleaded
innocence and in order to substantiate their plea examined seven witnesses. The
Trial Court found two of the accused persons guilty, but acquitted Mangi Lal
and Nathu Singh as noted above. Convicted accused persons preferred appeals
before the High Court. State also filed an appeal questioning the acquittal.
Before the High Court it was submitted that no independent witness was examined
and in addition there was non-compliance of mandatory provision contained in
Sections 42, 50 and 57 of the Act. The High Court did not find any substance
and upheld the conviction and the sentence. The appeal filed by the State of Rajasthan questioning acquittal of Nathu
Singh and Mangi Lal was also dismissed holding that there was no infirmity in
the conclusions of the Trial Court.

In
support of the appeal filed by Smt. Krishan Kanwar, learned counsel for the
appellant submitted that this is a case where the prosecution has not tendered
evidence of any independent witness. Only official witnesses have been
examined. The independent witnesses who were examined did not support the
prosecution version and, in fact, stated that they only put signatures on blank
papers; the arrest of the accused persons was done on 4.7.1994 and not on
6.7.1994 as claimed. There are certain suspicious circumstances which corrode
prosecution version, about safe dispatch of the alleged collected samples.
Though the case of the prosecution was that alleged contraband articles were
procured by the accused Shamshuddin and Smt. Krishan Kanwar from Mangi Lal and Nathu
Singh, they have been acquitted, and therefore, the source of procurement as
allegedly done by the accused has not been established. The quantity recovered
from Smt. Krishan Kanwar cannot be said to be huge quantity, as observed by the
Trial Court and the High Court.

It was
a fairly small quantity. The evidence regarding alleged search of
accused-appellant Smt. Krishan Kanwar by lady constable (PW-5) is also full of
contradictions. No reliance should be placed on her evidence. It was a fairly
small quantity. Residually it was submitted that the sentence of 14 years and
fine of Rs.2 lakhs is extremely high.

Per
contra, learned counsel for the State supported the judgment and conviction and
submitted that three high placed officials were involved in the process of
search and seizure. There is no reason as to why they would falsely implicate
the accused persons. PW-16 monitored the entire operation in the presence of Addl.
S.P. Pratapgarh (PW-14).

The
S.P. was also present though he has not been examined as witness. The moment
the information was received, there was communication to the higher
authorities, and therefore, there is no violation of Section 42 as alleged. The
requirements of Section 50 were complied with by intimating the accused of his
option and choice and the existence of his right of being search by the police
officer (PW-16) or by a gazetted officer. The accused opted to be searched by
the police officer. So, there is no violation as alleged.

So far
as samples are concerned, the forensic laboratory report clearly indicates that
the samples were received sealed and tags, seals were in tact and on analysis
found to be heroin.

It is
seen that Exb.P-32 contains the secret information that was received by the Dy.
S.P. (PW-16).

Constable
Indermal (PW-9) had categorically stated that he had taken the intimation to
the S.P. and the Addl. S.P. The envelope was handed over to the S.P. at 9.00 p.m. and at 11.00 p.m. to the S.P. Pratapgarh and Chhoti Sadri. On the same day, at about 4.00 a.m. he returned to the police station. The Addl. S.P.
has been examined as PW-14 and also presence of S.P. has been deposed by the
witnesses. This clearly goes to show that there was receipt of information
dispatched by Dy. S.P. PW-16. That being so, merely because particulars of the
dispatch number were not stated that would not corrode credibility of the
evidence of the witnesses examined to establish that the information was conveyed
to the higher officials.

The
requirements vis-`-vis Sections 42 and 50 have been dealt with in many cases,
more particularly by a Constitution Bench in State of Punjab v. Baldev Singh
(1999 (6) SCC 172). In para 17 the conclusions in an earlier judgment State of Punjab v. Balbir Singh (1994 (3) SCC 299
at para 25) were quoted and approved. We are concerned with conclusions (2-C)
and (3) which read as follows:

"(2-C)
Under Section 42(1) the empowered officer if has a prior information given by
any persons, that should necessarily be taken down in writing. But if he has
reason to believe from personal knowledge that offences under Chapter IV have
been committed or materials which may furnish evidence of commission of such
offences are concealed in any building etc. he may carry out the arrest or
search without a warrant between sunrise and sunset and this provision does not
mandate that he should record his reasons of belief. But under the proviso to
Section 42(1) if such officer has to carry out such search between sunset and
sunrise, he must record the grounds of his belief.

(3)
Under Section 42(2) such empowered officer who takes down any information in
writing or records the grounds under proviso to Section 42(1) should forthwith
send a copy thereof to his immediate official superior. If there is total
non-compliance of this provision the same affects the prosecutions case. To
that extent it is mandatory. But if there is delay whether it was undue or
whether the same has been explained or not, will be a question of fact in each
case." Section 42 deals with power of entry, search, seizure and arrest
without of authorization. The provision reads as follows:

"42.
Power of entry, search, seizure and arrest without warrant or authorisation.

- (1)
Any such officer (being an officer superior in rank to a peon, sepoy or
constable) of the Departments of Central Excise, Narcotics, Customs, Revenue
Intelligence or any other department of the Central Government or of the Border
Security Force as is empowered in this behalf by general or special order by
the Central Government, or any such officer (being an officer superior in rank
to a peon, sepoy or constable) of the Revenue, Drugs Control, Excise, Police or
any other department of a State Government as is empowered in this behalf by
general or special order of the State Government, if he has reason to believe
from personal knowledge or information given by any person and taken down in
writing, that any narcotic drug, or psychotropic substance, in respect of which
an offence punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such offence is
kept or concealed in any building, conveyance or enclosed place, may, between
sunrise and sunset, -

(a) enter
into and search any such building, conveyance or place;

(b) in
case of resistance, break open any door and remove any obstacle to such entry;

(c)
such drug or substance and all materials used in the manufacture thereof and
any other article and any animal or conveyance which he has reason to believe
to be liable to confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the commission of any
offence punishable under Chapter IV relating to such drug or substance; and

(d) detain
and search, and, if he thinks proper, arrest any person whom he has reason to
believe to have committed any offence punishable under Chapter IV relating to
such drug or substance :

Provided
that if such officer has reason to believe that a search warrant or authorisation
cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may enter and search
such building, conveyance or enclosed place at any time between sunset and
sunrise after recording the grounds of his belief.

(2) Where
an officer takes down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto, he shall forthwith
send a copy thereof to his immediate official superior." Section 42
enables certain officers duly empowered in this behalf by the Central or State
Government, as the case may be, to enter into and search any building,
conveyance or enclosed place for the purpose mentioned therein without any
warrant or authorization. Section 42 deal with "building, conveyance or
enclosed place" whereas Section 43 deals with power of seizure and arrest
in public place.

Under
sub-section (1) of Section 42 the method to be adopted and the procedure to be
followed have been laid down. If the concerned officer has reason to believe
from personal knowledge, or information given by any person and has taken down
in writing, that any narcotic drugs or substance in respect of which an offence
punishable under Chapter IV of the Act has been committed or any other articles
which may furnish evidence of the commission of such offence is kept or
concealed in any "building or conveyance or enclosed place" he may
between sunrise and sunset, do the acts enumerated in clauses (a), (b), (c) and
(d) of sub-section (1).

The
proviso came into operation if such officer has reason to believe that search
warrant or authorization cannot be obtained without affording opportunity for
the concealment of evidence or facility for the escaped offender, he may enter
and search such building, conveyance or enclosed place any time between sunrise
and sunset after recording grounds of his belief. Section 42 comprises of two
components. One relates to the basis of information i.e.

(i) from
personal knowledge

(ii) information
given by person and taken down in writing.

The
second is that the information must relate to commission of offence punishable
under Chapter IV and/or keeping or concealment of document or article in any
building, conveyance or enclosed place which may furnish evidence of commission
of such offence.

Unless
both the components exist Section 42 has no application. Sub-section (2)
mandates as was noted in Baldev Singh's case (supra) that where an officer takes
down any information in writing under sub-section (1) or records grounds for
his belief under the proviso thereto, he shall forthwith send a copy thereof to
his immediate official superior. Therefore, sub-section (2) only comes into
operation where the officer concerned does the enumerated acts, in case any
offence under Chapter IV has been committed or documents etc. are concealed in
any building, conveyance or enclosed place. Therefore, the commission of the
act or concealment of document etc. must be in any building, conveyance or
enclosed place.

The
Trial Court and the High Court after analyzing the evidence have come to hold
that there was compliance of Section 42(2) in the sense that requisite
documents were sent to the superior officer. Though learned counsel for the
appellant tried to submit that there was no definite evidence about sending
copies of the requisite documents to the superior officers, yet in view of the
analysis of evidence done by the trial Court and also by the High Court, with
which no infirmity of any kind could be substantiated effectively, we do not
find any substance in the plea that there was violation of Section 42(2).

So far
as the alleged non-compliance of Section 50 is concerned, the said provision
reads as follows:

"50.
Conditions under which search of persons shall be conducted. –

(1)
When any officer duly authorised under Section 42 is about to search any person
under the provisions of Section 41, Section 42 or Section 43, he shall, if such
person so requires, take such person without unnecessary delay to the nearest gazetted
officer of any of the departments mentioned in Section 42 or to the nearest
Magistrate.

(2) If
such requisition is made, the officer may detain the person until he can bring
him before the gazetted officer or the Magistrate referred to in sub-section
(1).

(3)
The gazetted officer or the Magistrate before whom any such person is brought
shall, if he sees no reasonable ground for search, forthwith discharge the
person but otherwise shall direct that search be made.

(4) No
female shall be searched by anyone excepting a female." A bare reading of
Section 50 shows that it only applies in case of personal search of a person.
It does not extend to search of a vehicle or a container or a bag, or premises.

The
language of Section 50 is implicitly clear that the search has to be in
relation to a person as contrasted to search of premises, vehicles or articles.
This position was settled beyond doubt by the Constitution Bench in Baldev
Singh's case (supra).

In
order to appreciate rival submissions, some of the observations made by the
Constitution Bench in Baldev Singh's case (supra) are required to be noted. It
is also to be noted that the Court did not in the abstract decide whether
Section 50 was directory or mandatory in nature. It was held that the
provisions to the Act implicitly make it imperative and obligatory and cast a
duty on the investigating officer (empowered officer) to ensure that search of
the person (suspect) concerned is conducted in the manner prescribed by Section
50 by intimating to the person concerned about the existence of his right that
if he so requires, he shall be searched before a Gazetted Officer or a
Magistrate and in case he so opts, failure to conduct his search before a Gazetted
Officer or a Magistrate would cause prejudice to the accused and render the
recovery of the illicit articles suspect and vitiate the conviction and
sentence of the accused. Where the conviction has been recorded only on the
basis of the possession of the illicit article, recovered during a search
conducted in violation of the provisions of Section 50 of the Act, it was
illegal. It was further held that the omission may not vitiate the trial as
such, but because of the inherent prejudice which would be caused to an accused
by the omission to be informed of the existence of his right, it would render
his conviction and sentence unsustainable. In paragraph 32 of the judgment (at
page 200) this position was highlighted. In para 57, inter alia, the following
conclusions were arrived at:

"(1)
That when an empowered officer or a duly authorized officer acting on prior
information is about to search a person, it is imperative for him to inform the
person concerned of his right under sub-section (1) of Section 50 of the Act of
being taken to the nearest gazetted officer or nearest Magistrate for making
the search. However, such information may not necessarily be in writing.

(2)
That failure to inform the person concerned about the existence of his right to
be searched before a gazetted officer or a Magistrate would cause prejudice to
an accused.

(3)
That a search made by an empowered officer, on prior information, without
informing the person of his right that if he so requires, he shall be taken
before a gazetted officer or a Magistrate for search and in case he so opts,
failure to conduct his search before a gazetted officer or a Magistrate, may
not vitiate the trial but would render the recovery of the illicit article
suspect and vitiate the conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the possession of the illicit
article, recovered from his person, during a search conducted in violation of
the provisions of Section 50 of the Act.

(5)
That whether or not the safeguards provided in Section 50 have been duly
observed would have to be determined by the court on the basis of the evidence
led at the trial. Finding on that issue, one way or the other would be relevant
for recording an order of conviction or acquittal. Without giving an
opportunity to the prosecution to establish, at the trial, that the provisions
of Section 50 and, particularly, the safeguards provided therein were duly
complied with, it would not be permissible to cut short a criminal trial.

(6)
That in the context in which the protection has been incorporated in Section 50
for the benefit of the person intended to be searched, we do not express any
opinion whether the provisions of Section 50 are mandatory or directory, but
hold that failure to inform the person concerned of his right as emanating from
sub-section (1) of Section 50 and render the recovery of the contraband suspect
and the conviction and sentence of an accused bad and unsustainable in law.

(7)
That an illicit article seized from the person of an accused during search
conducted in violation of the safeguards provided in Section 50 of the Act
cannot be used as evidence of proof of unlawful possession of the contraband on
the accused though any other material recovered during that search may be
relied upon by the prosecution, in other proceedings, against an accused,
notwithstanding the recovery of that material during an illegal search."
It is not disputed that there is no specific form prescribed or intended for
conveying the information required to be given under Section 50. What is
necessary is that the accused (suspect) should be made aware of the existence
of his right to be searched in presence of one of the officers named in the
Section itself. Since no specific mode or manner is prescribed or intended, the
Court has to see the substance and not the form of intimation. Whether the
requirements of Section 50 have been met is a question which is to be decided
on the facts of each case and there cannot be any sweeping generalization
and/or strait-jacket formula.

Section
50 does not involve any self-incrimination. It is only a procedure required to
protect the rights of an accused (suspect) being made aware of the existence of
his right to be searched if so required by him before any of the specified
officers. The object seems to be to ensure that at a later stage the accused (suspect)
does not take a plea that the articles were planted on him or that those were
not recovered from him. To put it differently, fair play and transparency in
the process of search has been given the primacy. In Raghbir Singh v. State of Haryana (1996 (2) SCC 201), the true
essence of Section 50 was highlighted in the following manner:

"8.
The very question that is referred to us came to be considered by a Bench of
two learned Judges on 22.1.1996 in Manohar Lal v. State of Rajasthan (Crl.M.P.No.138/96 in SLP(Crl.)No.184/1996).
One of us (Verma, J), speaking for the Bench, held:

"It
is clear from Section 50 of the NDPS Act that the option given thereby to the
accused is only to choose whether he would like to be searched by the officer
making the search or in the presence of the nearest available Gazetted Officer
or the nearest available Magistrate. The choice of the nearest Gazetted Officer
or the nearest Magistrate has to be exercised by the officer making the search
and not by the accused".

9. We
concur with the view taken in Manohar Lal's case supra.

10.
Finding a person to be in possession of articles which are illicit under the
provisions of the Act has the consequence of requiring him to prove that he was
not in contravention of its provisions and it renders him liable to severe
punishment. It is, therefore, that the Act affords the person to be searched a
safeguard. He may require the search to be conducted in the presence of a
senior officer. The senior officer may be a Gazetted Officer or a Magistrate,
depending upon who is conveniently available.

11.
The option under Section 50 of the Act, as it plainly reads, is only of being
searched in the presence of such senior officer. There is no further option of
being searched in the presence of either a Gazetted Officer or of being
searched in the presence of a Magistrate. The use of the word 'nearest' in
Section 50 is relevant.

The
search has to be conducted at the earliest and, once the person to be searched
opts to be searched in the presence of such senior officer, it is for the
police officer who is to conduct the search to conduct it in the presence of
whoever is the most conveniently available, Gazetted Officer or
Magistrate".

As has
been highlighted in Baldev Singh's case (supra) it has to be seen and gauzed
whether the requirements of Section 50 have been met. Section 50 in reality
provides for additional safeguards which are not specifically provided by the
statute. The stress is on the adoption of a reasonable, fair and just
procedure. No specific words are necessary to be used to convey existence of
the right.

The
above position was elaborately dealt with in Prabha Shankar Dubey v. State of Madhya Pradesh (2003 AIR SCW 6592).

A
similar question was also examined in Madan Lal and Anr. v. State of Himahal Pradesh (2003 (6) Supreme 382).

The
quantity recovered by no stretch of imagination is small. Further, nothing
could be shown as to how there was violation of Section 57 of the Act. The safe
custody of seized articles and samples has been established by cogent evidence.
Forensic Laboratory report shows that the samples were received in sealed
conditions with seals and tags in tact. That being so, there is no infraction
as alleged.

When
the factual position is tested on the legal principles indicated above, the
inevitable conclusion is that the prosecution has established its case beyond a
shadow of doubt and the conviction and sentence imposed are well merited. The
appeal filed by the accused Smt. Krishna Kanwar stands dismissed.

Coming
to the appeal filed by the State of Rajasthan, questioning acquittal of Nathu Singh and Mangi Lal, we find that the
Trial Court and the High Court found lack of material to connect them with the
crime. The Trial Court categorically observed that the requirements of Section
42(1) and 42(2) were not complied with. The houses of these accused were
straightaway searched. Even there was no compliance with the requirements of
Sections 50 though there was personal search involved. It was submitted by
learned counsel for the State that on the basis of information given by the
co-accused, recovery was made and, therefore, Section 27 of the Indian Evidence
Act, 1872 was applicable. The so-called disclosure is allegedly made by accused
Shamshuddin and Smt. Krishan Kanwar. Here again the Courts below have found
evidence to be inadequate.

In
view of the infirmities noticed by the Trial Court and the High Court, they
were justified in directing acquittal of Nathu Singh and Mangi Lal. The said
appeal is sans merit and stands dismissed.

Both
Criminal Appeal Nos. 52 and 53 of 2003 are accordingly dismissed.